§ 5303. — Certain bars to benefits.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC5303]
TITLE 38--VETERANS' BENEFITS
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 53--SPECIAL PROVISIONS RELATING TO BENEFITS
Sec. 5303. Certain bars to benefits
(a) The discharge or dismissal by reason of the sentence of a
general court-martial of any person from the Armed Forces, or the
discharge of any such person on the ground that such person was a
conscientious objector who refused to perform military duty or refused
to wear the uniform or otherwise to comply with lawful orders of
competent military authority, or as a deserter, or on the basis of an
absence without authority from active duty for a continuous period of at
least one hundred and eighty days if such person was discharged under
conditions other than honorable unless such person demonstrates to the
satisfaction of the Secretary that there are compelling circumstances to
warrant such prolonged unauthorized absence, or of an officer by the
acceptance of such officer's resignation for the good of the service, or
(except as provided in subsection (c)) the discharge of any individual
during a period of hostilities as an alien, shall bar all rights of such
person under laws administered by the Secretary based upon the period of
service from which discharged or dismissed, notwithstanding any action
subsequent to the date of such discharge by a board established pursuant
to section 1553 of title 10.
(b) Notwithstanding subsection (a), if it is established to the
satisfaction of the Secretary that, at the time of the commission of an
offense leading to a person's court-martial, discharge, or resignation,
that person was insane, such person shall not be precluded from benefits
under laws administered by the Secretary based upon the period of
service from which such person was separated.
(c) Subsection (a) shall not apply to any alien whose service was
honest and faithful, and who was not discharged on the individual's own
application or solicitation as an alien. No individual shall be
considered as having been discharged on the individual's own application
or solicitation as an alien in the absence of affirmative evidence
establishing that the individual was so discharged.
(d) This section shall not apply to any war-risk insurance,
Government (converted) or National Service Life Insurance policy.
(e)(1) Notwithstanding any other provision of law, (A) no benefits
under laws administered by the Secretary shall be provided, as a result
of a change in or new issuance of a discharge under section 1553 of
title 10, except upon a case-by-case review by the board of review
concerned, subject to review by the Secretary concerned, under such
section, of all the evidence and factors in each case under published
uniform standards (which shall be historically consistent with criteria
for determining honorable service and shall not include any criterion
for automatically granting or denying such change or issuance) and
procedures generally applicable to all persons administratively
discharged or released from active military, naval, or air service under
other than honorable conditions; and (B) any such person shall be
afforded an opportunity to apply for such review under such section 1553
for a period of time terminating not less than one year after the date
on which such uniform standards and procedures are promulgated and
published.
(2) Notwithstanding any other provision of law--
(A) no person discharged or released from active military,
naval, or air service under other than honorable conditions who has
been awarded a general or honorable discharge under revised
standards for the review of discharges, (i) as implemented by the
President's directive of January 19, 1977, initiating further action
with respect to the President's Proclamation 4313 of September 16,
1974, (ii) as implemented on or after April 5, 1977, under the
Department of Defense's special discharge review program, or (iii)
as implemented subsequent to April 5, 1977, and not made applicable
to all persons administratively discharged or released from active
military, naval, or air service under other than honorable
conditions, shall be entitled to benefits under laws administered by
the Secretary except upon a determination, based on a case-by-case
review, under standards (meeting the requirements of paragraph (1)
of this subsection) applied by the board of review concerned under
section 1553 of title 10, subject to review by the Secretary
concerned, that such person would be awarded an upgraded discharge
under such standards; and
(B) such determination shall be made by such board (i) on an
expedited basis after notification by the Department to the
Secretary concerned that such person has received, is in receipt of,
or has applied for such benefits or after a written request is made
by such person or such determination, (ii) on its own initiative
before October 9, 1978, in any case where a general or honorable
discharge has been awarded before October 9, 1977, under revised
standards referred to in clause (A)(i), (ii), or (iii) of this
paragraph, or (iii) on its own initiative at the time a general or
honorable discharge is so awarded in any case where a general or
honorable discharge is awarded after October 8, 1977.
If such board makes a preliminary determination that such person would
not have been awarded an upgraded discharge under standards meeting the
requirements of paragraph (1) of this subsection, such person shall be
entitled to an appearance before the board, as provided for in section
1553(c) of title 10, prior to a final determination on such question and
shall be given written notice by the board of such preliminary
determination and of the right to such appearance. The Secretary shall,
as soon as administratively feasible, notify the appropriate board of
review of the receipt of benefits under laws administered by the
Secretary, or of the application for such benefits, by any person
awarded an upgraded discharge under revised standards referred to in
clause (A)(i), (ii), or (iii) of this paragraph with respect to whom a
favorable determination has not been made under this paragraph.
(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1230, Sec. 3103; Pub. L. 86-
113, July 28, 1959, 73 Stat. 262; Pub. L. 95-126, Sec. 1(a), Oct. 8,
1977, 91 Stat. 1106; Pub. L. 97-295, Sec. 4(75), Oct. 12, 1982, 96 Stat.
1310; Pub. L. 99-576, title VII, Sec. 701(70), Oct. 28, 1986, 100 Stat.
3296; renumbered Sec. 5303, Pub. L. 102-40, title IV, Sec. 402(b)(1),
May 7, 1991, 105 Stat. 238; Pub. L. 102-83, Sec. 4(a)(1), (3), (4),
(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403-405.)
References in Text
President's Proclamation 4313 of September 16, 1974, referred to in
subsec. (e)(2)(A), is set out as a note under section 462 of Title 50,
Appendix, War and National Defense.
Amendments
1991--Pub. L. 102-40 renumbered section 3103 of this title as this
section.
Subsecs. (a), (b). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator''.
Pub. L. 102-83, Sec. 4(a)(1), substituted ``administered by the
Secretary'' for ``administered by the Veterans' Administration''.
Subsec. (e)(1). Pub. L. 102-83, Sec. 4(a)(1), substituted
``administered by the Secretary'' for ``administered by the Veterans'
Administration''.
Subsec. (e)(2). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted
``Secretary'' for ``Administrator'' in last sentence.
Pub. L. 102-83, Sec. 4(a)(3), (4), substituted ``Department'' for
``Veterans' Administration'' in subpar. (B).
Pub. L. 102-83, Sec. 4(a)(1), substituted ``administered by the
Secretary'' for ``administered by the Veterans' Administration'' in
subpar. (A) and last sentence.
1986--Subsec. (a). Pub. L. 99-576, Sec. 701(70)(A), substituted
``such person'' for ``he'' after ``on the ground that'' and ``such
officer's'' for ``his'' before ``resignation''.
Subsec. (b). Pub. L. 99-576, Sec. 701(70)(B), substituted ``a
person's'' for ``his'', ``that person'' for ``any person'', and ``such
person'' for ``he'' before ``was separated''.
Subsec. (c). Pub. L. 99-576, Sec. 701(70)(C), substituted ``the
individual's'' for ``his'' in two places, and ``the individual'' for
``he''.
Subsec. (e)(2). Pub. L. 99-576, Sec. 701(70)(D), substituted ``the''
for ``his or her'' before ``right to such appearance'' at end of second
sentence.
1982--Subsec. (e)(2)(B). Pub. L. 97-295 substituted ``before October
9, 1978,'' for ``within one year after the date of enactment of this
paragraph'', ``before October 9, 1977,'' for ``on or prior to the date
of enactment of this paragraph'', and ``October 8, 1977'' for ``such
enactment date''.
1977--Subsec. (a). Pub. L. 95-126, Sec. 1(a)(1), inserted provisions
barring a person in the Armed Forces from being a recipient of benefits
when discharged on the basis of an absence without authority from active
duty for a continuous period of at least one hundred and eighty days if
such person was discharged under conditions other than honorable unless
such person demonstrates to the satisfaction of the Administrator that
there are compelling circumstances to warrant such prolonged
unauthorized absence and barred benefits notwithstanding any action
subsequent to the date of such discharge by a board established pursuant
to section 1553 of Title 10.
Subsec. (e). Pub. L. 95-126, Sec. 1(a)(2), added subsec. (e).
1959--Subsec. (c). Pub. L. 86-113 required affirmative evidence to
establish that alien was discharged on his own application or
solicitation.
Effective Date of 1977 Amendment
Section 5 of Pub. L. 95-126 provided that: ``This Act [amending this
section and section 101 of this title and enacting provisions set out
below] shall become effective on the date of its enactment [Oct. 8,
1977], except that--
``(1) section 2 [set out below] shall become effective on
October 1, 1977, or on such enactment date, whichever is later; and
``(2) the amendments made by section 1(a) [amending this
section] shall apply retroactively to deny benefits under laws
administered by the Veterans' Administration, except that,
notwithstanding any other provision of law--
``(A) with respect to any person who, on such enactment date
[Oct. 8, 1977] is receiving benefits under laws administered by
the Veterans' Administration, (i) such benefits shall not be
terminated under paragraph (2) of section 3103(e) [now 5303(e)]
of title 38, United States Code, as added by section 1(a)(2) of
this Act, until (I) the day on which a final determination not
favorable to the person concerned is made on an expedited basis
under paragraph (2) of such section 3103(e) [now 5303(e)], (II)
the day following the expiration of ninety days after a
preliminary determination not favorable to such person is made
under such paragraph, or (III) the day following the expiration
of one hundred and eighty days after such enactment date,
whichever day is the earliest, and (ii) the United States shall
not make any claim to recover the value of any benefits provided
to such person prior to such earliest day;
``(B) with respect to any person awarded a general or
honorable discharge under revised standards for the review of
discharges referred to in clause (A) (i), (ii), or (iii) of such
paragraph who has been provided any such benefits prior to such
enactment date [Oct. 8, 1977], the United States shall not make
any claim to recover the value of any benefits so provided; and
``(C) the amendments made by clause (1) of section 1(a)
[amending this section] shall apply (i) retroactively only to
persons awarded general or honorable discharges under such
revised standards and to persons who, prior to the date of
enactment of this Act [Oct. 8, 1977], had not attained general
eligibility for such benefits by virtue of (I) a change in or
new issuance of a discharge under section 1553 of title 10,
United States Code, or (II) any other provision of law, and (ii)
prospectively (on and after such enactment date) to all other
persons.''
Expedited Determinations After Information and Notification to Persons
Awarded General or Honorable Discharges; Procedures for Application to
Title 10 Sec. 1552 Board and to Secretary of Veterans Affairs
Pub. L. 95-126, Sec. 1(b), Oct. 8, 1977, 91 Stat. 1107, as amended
by Pub. L. 100-527, Sec. 10(1), (2), Oct. 25, 1988, 102 Stat. 2640,
2641; Pub. L. 102-40, title IV, Sec. 402(d)(2), May 7, 1991, 105 Stat.
239, provided that:
``(1) The Secretary of Defense shall fully inform each person
awarded a general or honorable discharge under revised standards for the
review of discharges referred to in section 5303(e)(2)(A)(i), (ii), or
(iii) [formerly 3103(e)(2)(A)(i), (ii), or (iii)] of title 38, United
States Code, as added by subsection (a)(2) of this section, of his or
her right to obtain an expedited determination under section
5303(e)(2)(B)(i) [formerly 3103(e)(2)(B)(i)] of such title and of the
implications of the provisions of this Act [amending this section and
section 101(18) of this title and enacting provisions set out as notes
under this section] for each such person.
``(2) Notwithstanding any other provision of law, the Secretary of
Defense shall inform each person who applies to a board of review under
section 1553 of title 10, United States Code, and who appears to have
been discharged under circumstances which might constitute a bar to
benefits under section 5303(a) [formerly 3103(a)] of title 38, United
States Code, (A) that such person might possibly be administratively
found to be entitled to benefits under laws administered by the
Department of Veterans Affairs only through the action of a board for
the correction of military records under section 1552 of such title 10
or the action of the Secretary of Veterans Affairs under section 5303
[formerly 3103] of such title 38, and (B) of the procedures for making
application to such section 1552 board for such purpose and to the
Secretary of Veterans Affairs for such purpose (including the right to
proceed concurrently under such sections 5303 [formerly 3103], 1552, and
1553).''
Health Care and Benefits for Disability During Active Service in Line of
Duty, Except When Barred Under Subsec. (a) or by Bad Conduct Discharge
Pub. L. 95-126, Sec. 2, Oct. 8, 1977, 91 Stat. 1107, as amended by
Pub. L. 100-527, Sec. 10(1), Oct. 25, 1988, 102 Stat. 2640; Pub. L. 102-
40, title IV, Sec. 402(d)(2), May 7, 1991, 105 Stat. 239, provided that:
``Notwithstanding any other provision of law, the Secretary of Veterans
Affairs shall provide the type of health care and related benefits
authorized to be provided under chapter 17 of title 38, United States
Code, for any disability incurred or aggravated during active military,
naval, or air service in line of duty by a person other than a person
barred from receiving benefits by section 5303(a) [formerly 3103(a)] of
such title, but shall not provide such health care and related benefits
pursuant to this section for any disability incurred or aggravated
during a period of service from which such person was discharged by
reason of a bad conduct discharge.''
Regulations Respecting Standards and Procedures for Determination of
Separation From Active Service Under Conditions Other Than Dishonorable
Free of Unique or Special Advantages or Special Distinctions Between
Veterans
Pub. L. 95-126, Sec. 4, Oct. 8, 1977, 91 Stat. 1108, as amended by
Pub. L. 100-527, Sec. 10(1), (2), Oct. 25, 1988, 102 Stat. 2640; Pub. L.
102-40, title IV, Sec. 402(d)(2), May 7, 1991, 105 Stat. 239, provided
that: ``In promulgating, or making any revisions of or amendments to,
regulations governing the standards and procedures by which the
Department of Veterans Affairs determines whether a person was
discharged or released from active military, naval, or air service under
conditions other than dishonorable, the Secretary of Veterans Affairs
shall, in keeping with the spirit and intent of this Act [amending this
section and section 101(18) of this title and enacting provisions set
out as notes under this section], not promulgate any such regulations or
revise or amend any such regulations for the purpose of, or having the
effect of, (1) providing any unique or special advantage to veterans
awarded general or honorable discharges under revised standards for the
review of discharges described in section 5303(e)(2)(A)(i), (ii), or
(iii) [formerly 3103(e)(2)(A)(i), (ii), or (iii)] of title 38, United
States Code, as added by section 1(a)(2) of this Act, or (2) otherwise
making any special distinction between such veterans and other
veterans.''
Section Referred to in Other Sections
This section is referred to in section 3103 of this title.
